Court Holds That Trimming of Neighbor’s Trees is Not an Insured Accident or Occurrence
June 10, 2015 —
Christopher Kendrick and Valerie A. Moore – Haight Brown & Bonesteel LLPIn Albert v. Mid-Century Insurance Co. (No. B257792, filed 4/28/15, ord. pub. 5/20/15), a California Court of Appeal held that an insured’s trimming of a neighbor’s trees which allegedly damaged the trees was not an accident or occurrence covered by her homeowners insurance, despite a mistaken and good faith belief as to where the property line lay.
Ms. Albert was sued by her adjoining neighbor, who alleged damage to his property when she erected an encroaching fence and pruned nine mature olive trees on his property. The two parcels shared a reciprocal roadway easement providing for access to the main public road. At some point, Ms. Albert erected a fence that was subsequently determined to be on the neighbor’s land, and which enclosed a grove of nine mature olive trees. Ms. Albert claimed that the trees straddled the property line and were mutually owned. She pointed out that she had regularly been notified by the Los Angeles Fire Department to clear the area, and that she had been trimming the trees for years. Thus, she claimed a good faith belief that the trees were hers and that she was required to trim them.
Contending that her trimming had caused severe damage by reducing the aesthetic and monetary value of the trees, the neighbor sued alleging causes of action for trespass to real property and trees; abatement of private nuisance; declaratory relief; and for quiet title. He sought treble damages under Civil Code sections 733 and 3346, for injury to timber or trees.
Reprinted courtesy of
Christopher Kendrick, Haight Brown & Bonesteel LLP and
Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com; Ms. Moore may be contacted at vmoore@hbblaw.com
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NY Is Set To Sue US EPA Over ‘Completion’ of PCB Removal
June 25, 2019 —
Mary B. Powers - Engineering News-RecordNew York state intends to sue the U.S. Environmental Protection Agency for issuing a certificate to General Electric Co. affirming the company completed its $1.7-billion cleanup of about 40 miles of the upper Hudson River, contaminated with PCBs from two former factories. State Attorney General Letitia James said April 11 that a December state study showed elevated PCB levels in river sediment and concentrations in fish, which were not recovering at the rate EPA anticipated.
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Mary B. Powers, ENRENR may be contacted at
ENR.com@bnpmedia.com
Builders Association Seeks to Cut Down Grassroots Green Building Program (Guest Post)
October 04, 2021 —
Christopher G. Hill - Construction Law MusingsFor this week’s year end Guest Post Friday here at Musings, we welcome Michael Anschel. Michael is the owner of Otogawa-Anschel Design-Build, a member of BATC, lead the development of and serves as a board member to MN GreenStar, the CEO of Verified Green, Inc., and writes the green blog for Remodeling Magazine Online.
If you have been following the sad state of affairs in Minnesota recently (no not the elections) you might be scratching a bald spot on your head in amazement. To my knowledge it is the only state in which the local builders association [ www.batconline.org ] has actually sued the local Green building program (MN GreenStar [ www.mngreenstar.org ]; going as far as filing a restraining order to keep them from certifying any new homes in the state.
This is, in my opinion, a tragic move in the wrong direction for everyone; builders and homeowners alike.
The builders group widely know for The Parade of Homes claims to have no interest in using the program or the brand MN GreenStar, so why seek to shut the program down? Even the lawyers have been scratching their heads trying to make sense of this bizarre and highly aggressive move. And things just get more bizarre from there.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Construction Injuries Under the Privette Doctrine. An Electrifying, but Perhaps Not Particularly Shocking, Story . . .
January 05, 2017 —
Garret Murai – California Construction Law BlogWe’ve talked about the Privette doctrine before (see
here,
here, and
here). The Privette doctrine, named after the court case Privette v. Superior Court (1993) 5 Cal.4th 689, provides in general that project owners and contractors are not responsible for worksite injuries suffered by employees of lower-tiered contractors they have hired, the rationale being that such workers should already be covered under their employers’ workers’ compensation insurance policies.
In the twenty years since Privette was decided, however, several exceptions have evolved that have narrowed the doctrine. One exception, known as the retained control exception, allows a contractor’s employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
Another exception, known as the nondelegable duty exception, permits an injured worker to recover against a hirer when the hirer has assumed a nondelegable duty, including statutory and regulatory duties, that it breaches in a manner that affirmatively contributes to the injury. Padilla v. Pomona College (2008) 166 Cal.App.4th 661.
In a recently decided case, Khosh v. Staples Construction Company, Inc., Case No. B268937 (November 17, 2016), the California Court of Appeals for the Second District examined the application of the Hooker and Padilla exceptions where a general contractor was contractually responsible for overall site safety.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
New Jersey Law regarding Prior Expert’s Testimony
April 15, 2014 —
Beverley BevenFlorez-CDJ STAFFMary Pat Gallagher writing for the New Jersey Law Journal reported that “[l]awyers who track down an opposing expert's testimony from prior cases must disclose that fact during discovery but need not say whether they plan to use it in cross-examining the expert at trial, a New Jersey appeals court says.” In Dalton v. Crawley, the Appellate Division held that “[d]ecisions about cross-examination ‘involve the attorney's mental processes, so they are inherently work product.’”
The issue began when “one of the defense lawyers, Michael McGann, figured out from the deposition questions Mahoney directed at one of his experts that he had transcripts of testimony from earlier cases,” according to the New Jersey Law Journal. “Hit with a notice to produce the transcripts, [Plaintiff attorney Brian] Mahoney refused, saying they were ‘attorney work product and we will not be telling you what we have developed regarding this expert.’"
The New Jersey Law Journal declared that the “ruling means both sides will have to indicate what transcripts they have gathered for use—giving the name of each expert as well as the name and docket number of the prior cases where those experts testified. “
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TLSS Partner Burks Smith and Associate Katie Keller Win Summary Judgment on Late Reported Water Seepage Case in South Florida
November 18, 2019 —
Burks A. Smith, III & Kathryn Keller - Traub LiebermanOn July 9, 2019, Traub Lieberman Straus & Shrewsberry LLP Partner, Burks A. Smith, III and Associate, Kathryn A. Keller, secured Summary Judgment on behalf of a major homeowners’ insurer in a breach of contract action in the United States District Court for the Southern District of Florida. See Lehrfield v. Liberty Mutual Fire Insurance Company, 2019 WL2994270 (S.D. Fla. 2019). The underlying claim involved a water loss at the Plaintiffs’ residence allegedly resulting in $91,147.32 worth of damage to their home. The claim was reported eight (8) months after the alleged date of loss, and during the inspection, the adjuster observed rot, decay, mold, and warping wood, prompting the carrier to deny the claim based on the Seepage Endorsement. The Plaintiffs filed a breach of contract action alleging that the insurer breached the Policy by denying the claim.
Mr. Smith and Ms. Keller argued that Plaintiffs’ Policy with the insurer imposes a duty on the Plaintiffs to comply with the Duties After Loss conditions of the Policy, including the requirement to provide prompt notice of the loss and show the damaged property. As mentioned above, the Plaintiffs provided notice of the claim eight (8) months late, and performed various repairs prior to notifying the insurer of the claim. After the close of discovery, Mr. Smith and Ms. Keller filed a Motion for Summary Judgment on behalf of the insurer based on the late reporting, and further argued that the Plaintiffs had the burden of proving direct physical loss to property within the first 13 days of the loss, given the recent decision of Hicks v. American Integrity Insurance Company of Florida, 241 So.3d 925 (Fla. 3d DCA 1018). In Florida, when an insured fails to comply with their Duties After Loss, a presumption of prejudice to the insurer arises. Bankers Ins. Co. v. Macias, 475 So. 2d 1216, 1218 (Fla. 1985)). In order to recover, the Plaintiffs bear the burden of overcoming the presumption, and must prove that no prejudice existed. Id. Mr. Smith and Ms. Keller’s comprehensive arguments successfully proved to the Court that the Plaintiffs’ failure to timely report the claim prejudiced the insurer by prohibiting the insurer from being able to independently validate the loss, or distinguish between multiple causes of loss. Mr. Smith and Ms. Keller further argued that Plaintiffs did not meet their burden to prove that the insurer was not prejudiced by the Plaintiffs’ failure to comply with the Duties After Loss provision of the Policy. The Motion cited numerous cases and extensive analysis supporting the insurer’s position.
Reprinted courtesy of
Burks A. Smith, III, Traub Lieberman and
Kathryn Keller, Traub Lieberman
Mr. Smith, may be contacted at bsmith@tlsslaw.com
Ms. Keller may be contacted at kkeller@tlsslaw.com
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Denial of Motion to Dissolve Lis Pendens Does Not Automatically Create Basis for Certiorari Relief
November 16, 2023 —
David Adelstein - Florida Construction Legal UpdatesA recent appellate decision out of Florida’s Sixth District Court of Appeal holds that a trial court’s denial of motion to dissolve a lis pendens does NOT automatically give a basis for a petition for a writ of certiorari. Generalized allegations of “irreparable harm” to support the basis for the petition for writ of certiorari are insufficient. Rather, the party moving for the petition MUST clearly demonstrate the irreparable harm; otherwise, the petition for writ of certiorari will fail.
A lis pendens has legal significance. It is a recorded document that notifies the world that there is a pending lawsuit dealing with the real property at issue. This is important because who wants to buy a piece of property that is subject to litigation – that would be a risky transaction!
In CPPB, LLC v. Taurus Apopka City Center, LLC, 48 Fla.L.Weekly D1837a (Fla. 6th DCA 2023), a dispute arose as to a real estate transaction. The owner sold a parcel to a buyer. The owner also owned three adjacent parcels. As part of the transaction, the buyer agreed to perform certain improvements to all of the parcels including those adjacent parcels owned by the owner. The owner deposited funds in escrow for purposes of its share of the improvements. A payment dispute arose regarding the improvements and the buyer sued the seller. The seller filed a counterclaim to rescind the transaction along with a recorded lis pendens on the parcel purchased by the buyer. The buyer moved to dissolve the lis pendens which the trial court denied. This prompted the appeal – a petition for a write of certiorari based on the trial court’s denial of the motion to dissolve the lis pendens.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Who Would Face Liability For Oroville Dam Management: Brett Moore Authors Law360 Article
February 23, 2017 —
Brett G. Moore - Haight Brown & Bonesteel LLPOn February 12, 2017, the Butte County Sheriff ordered the evacuation of more than 180,000 people in the communities surrounding California’s Oroville Dam after officials spotted severe erosion in the dam’s emergency spillway. The Oroville Dam facilities are managed on by the Federal Energy Regulatory Commission, which licenses the project to California’s Department of Water Resources (DWR). In his Law360 article “Who Would Face Liability For Oroville Dam Management,” Attorney Brett Moore discusses the liability of the agencies involved in managing the Oroville facilities should the dam fail again.
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Brett G. Moore, Haight Brown & Bonesteel LLPMr. Moore may be contacted at
bmoore@hbblaw.com
